Mildly Droll: A Tale of Human Wrongs

ECHRThe Guardian has put up a skit in which, they say, “Patrick Stewart, Adrian Scarborough and Sarah Solemani expose the problems in the Conservative plan for a UK bill of rights.”

Well, no, actually.

The Guardian is the newspaper of choice for the Watermelons, and famous for its inability to spell. It is not famous for being funny. Except inasmuch as it is the butt of long-running jokes in Private Eye.

Human rights is one of those topics like UFOs, fairies and homoeopathy – it tends (with some noble exceptions) to be those people with the greatest interest in it that are the most misguided. It sounds good, of course.  But when it comes to the details, what one sees time and time again is that the protections of something like the European Convention on Human Rights are protections that are already present in a well-developed legal system like English law. And so, in the various “What has the ECHR done for us?” questions posed in the skit, it turns out that the answer is “Nothing useful at all”.  The gloss that it adds to the rights that were there all along is pretty much all bad news, harming the lives of citizens, not protecting them.

In short, the ECHR does a very poor job in areas where the English law had already done rather better. The skit is wrong on every point:

 

  English law ECHR
The Right to a fair trial Long enshrined in detailed common law (habeas corpus etc) and court rules. Article 6. Has led to huge wastes of legal costs[1] and pointless interferes with arbitration[2]. Has meant that the very useful adjudication procedures available in commercial cases are not also available to home owners.[3]
The right to privacy There is a complex and sufficient raft of protections, ranging from the law of defamation to the law of trespass. Article 8. Prohibits the police from keeping DNA details of suspected criminals.[4] Used by illegal immigrant to avoid deportation.
Freedom from torture Torture has long been outlawed under English as a particularly nasty example of battery. Article 3. Requires the release from prison of convicted murderers[5]. Halts or delays the extradition of terrorists.[6]
Freedom of religion English law has not forbidden freedom of religion. Not since the middle ages, anyway.[7] Article 9. Has led to massively expensive litigation about, eg, universities’ dress codes for students attending lectures.[8]
Freedom of expression English law has always protected free speech, but subject to sensible constraints as to defamation etc. Article 10. Interferes with laws about election spending.[9]
Freedom from discrimination Loads of English legislation. Too much of it, some would say. Article 14. Prohibits discrimination based on someone’s opinion. So on its face, it bans discriminating, for example, against an applicant for a bus driving job whose opinion is that it is better to drive on the right hand side of the road, because that is more “European”. Sloppy wording and bad law.
Freedom from slavery Done, back in William Wilberforce’s day.[10] Article 4.  Requires the police to investigate into domestic arrangements[11], but otherwise unnecessary.
Protecting victims of domestic violence Has long been a crime in England. Marriage is no licence for battery. Bizarrely, the ECtHR seems to think that it is contrary to the ECHR for Government not to monitor people’s domestic lives, whether they want it or not.[12]

Finally, it is suggested in the skit that it was the ECHR which eventually brought about peace in Northern Ireland, after many years of IRA terrorism. It is theory peddled by The Guardian and human rights activists.  The better explanation, it seems to me, is that in the closing stages the British security forces engaged in a “black op”, covertly killing the known terrorists that were still at large, so that there was no one left to do the murdering and the bombing. And by the fact that people stopped caring – they wanted to go shopping instead of having religious nutters on both sides screaming abuse at each other and planting bombs all over the place.

The real problem with the ECtHR is that it consists of unelected and unaccountable judges who think that it is their place to govern. One of the most distinguished judges in the UK, Lord Sumption has criticised the ECHR for acting beyond its remit, saying that the court had become

the international flag-bearer for judge-made fundamental law,

and that ECtHR judges have reinterpreted the HCHR to

 reflect its own view of what rights are required in a modern democracy.”

Similarly Baron Judge, who recently retired as Chief Justice:

The [ECtHR] has no authority to amend or override the constitutional arrangements in any country [the ECHR’s attempts to overrule Parliamentary decision making representing]  a dramatic and unconstitutional extension of judicial authority…

In any country which embraces the principle of democracy, and certainly in the United Kingdom, ultimate authority over constitutional and societal questions is not vested in a body of judges, however wise and distinguished, and even if the system for their appointment is beyond criticism

There was perhaps a place once for the ECHR.  There could done with it in Roman Italy, and Nazi Germany (not that any notice would have been taken of it in such environments).  But now it does far more harm than good, at any rate in the UK.

Australia is not a signatory to the ECHR. It does fine, thanks, on these issues without it. Except in the minds of those who think it would be a good idea for Australia to share in the sort of mass immigration pain now being felt by Greece and Turkey.

In typical Guardian style, they miss the one point that might be made in favour of the UK’s continuing submission to the ECHR – that leaving might set a bad example to other nations like Saudi Arabia and North Korea, who have a poor record in the matters. But I have a strong suspicion that those countries are not in the least influenced by whether the UK stays in or gets out. The present government has indicated a wish to leave the ECHR[13].  If the UK votes to leave the EU (as the polls now suggest is likely[14]) it might as well leave both institutions at the same time.

Goodbye.  Goodbye.

 

 

 

[1] Eg Steel And Morris v The United Kingdom (Application no. 68416/01) in which the taxpayers of the UK were ordered to pay compensation of £57,000 to two London Greenpeace activists who had gravely libelled McDonalds. The basis of the ECHR decision is that the pair were not awarded legal aid out of public funds. The legal aid bill would have been huge: the 1st instance judgment was 1,000 pages long, and then there was a 23 day Court of appeal hearing, and then an unsuccessful attempt by the pair to appeal the libel damages award against them to the House of Lords.  The libels included the far-fetched allegations that McDonalds that McDonalds is complicit in Third World starvation, practises economic imperialism,  destroys rainforests with poisons and colonial invasions, poisons customers with contaminated meat and hides its malfeasance. McDonalds is hardly health food, but these allegations were unsurprisingly found in all the processes to be baseless.  Nevertheless the ECtHR decision was that nutters should be entitled to public funding when they make such allegations and then get sued for libel.

Similarly Golder v. United Kingdom (1975) 1 EHRR 524, in which prisoner requested a lawyer because he said he wanted to sue a guard for defamation. Access was denied. The ECHR found that this violated the right to a fair trial.

[2] See the hugely expensive and tedious Swedish cases and the judgment of the European Court of Human Rights (Fifth Section) of 28 October 2012, Suda v. the Czech Republic, Application No. 1643/06.

[3] It was understandably felt that the risk of individuals and small companies being dragged through the mire of the European Court system was just too great.

[4] Coster v United Kingdom (2001) 33 EHRR 479. Happily, the decision is so obviously potty that the security forces appear to ignore it.

[5] See eg the case of Jeremy Bamber, convicted of killing 5 members of his own family. The ECtHR decided that keeping him locked up for life was torture.

[6] See for example the case of Abu Hamza.

[7] There was some bad news for Jews in 1290.  But the last remnants of that were swept away by Oliver Cromwell.

[8] See eg Leyla Şahin v. Turkey [2004] ECHR 299

[9] See eg Bowman v United Kingdom [1998] ECHR 4

[10] See R v. Knowles, ex parte Somersett (1772)

[11] See eg C. N. v. the United Kingdom, application No. 4239/08 (adjudicated in 2012)

[12] This approach might perhaps have some utility in countries like Turkey – see Opuz v. Turkey (Appl.no. 33401/02) – but has no place in a country like England.

[13] The manifesto commitment is to

scrap the Human Rights Act and curtail the role of the European Court of Human Rights

and this

We will reform human rights law and our legal system

We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The [present] Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights.

This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.,

[14] President Obama’s interventions seems to have had the effect of persuading people of the very opposite of his urgings.

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